The New Face of Impunity

The end of the twentieth century witnessed historic transitions to peace and democracy—albeit often tentative and partial—in Latin America, Eastern Europe, Africa, and Asia. For the global human rights movement, it might have been a time for ushering in a new era focused on securing the national and international mechanisms of accountability that would be the foundation for a new culture of rights within and across borders. Yet, in many countries, human rights groups barely had time to draw breath before finding themselves facing a new set of threats to human rights in the growth of common crime and social violence, and, in particular, in the public and political reactions to these crime waves.

Crime and violence appear to be rising in a wide range of countries. In its examination of available data, the World Health Organization found a staggering 50 percent increase in homicides around the world between 1985 and 1994. Regionally, Africa and Latin America vie for first place with the highest homicide rates in the world. The growth in violence crosses all regions, but while industrialized countries saw a 15 percent increase, the jump was more than 80 percent in Latin America and 112 percent in the Arab world.

Overall, low- and middle-income countries have homicide rates more than double those of high-income countries. Such data hide tremendous variations among gender and age cohorts, urban and rural or rich and poor communities, and ethnic and racial groups. While poverty does not necessarily correlate with high crime, many demographic, economic, and social trends are feeding real increases in crime rates. The youth factor is particularly clear (globally, violence is the cause of 14 percent of male deaths between the ages of 15 and 44) and deeply troubling for the many developing countries with “youth bubbles” and few youth employment opportunities. Other studies indicate that rapid and high-density urbanization cultivate violence, while a World Bank study of fifty countries found a clear relationship between inequality and increasing homicide rates. Expanding global trade in arms and drugs also creates opportunity and means for violent crime.

In transitional contexts, specific political factors also come into play. Armed groups can metamorphose into criminal gangs. Criminal justice systems molded by authoritarian regimes for the purposes of social control and regime protection are poorly equipped to tackle crime. Efforts by police and politicians to confront crime often lead to proposals that undermine rights, such as the expansion of police powers, a tolerance of torture, and the increasing of penalties—including reintroducing the death penalty. Even as the state again resorts to repression, private responses may erode the state’s sphere of influence. The boom of private security companies and, in some cases, the appearance or expansion of vigilantism and lynching are outgrowths of state incapacity to deal with crime.

Some analyses posit a continuum of violence from authoritarianism through the transition to democracy, with state violence replaced by private violence. State impunity for political crimes undergoes a perverse metamorphosis into criminal impunity. In developing countries already struggling with economic, social, and political challenges, crime and the ineffective and authoritarian responses to it further reduce the expected “democracy dividend.” This dynamic has a profoundly negative impact on public support for human rights. Surveys sometimes show massive support for abusive responses to crime, even among the poor who bear the brunt of both crime and police abuse. In some cases, people’s support for democracy itself has eroded.

For human rights organizations, the obvious strategy might be a relatively straightforward effort to stand up against policies that violate human rights norms and to take up the banner for due process rights and an end to police violence. In many transitions, however, human rights groups have not immediately recognized the challenges crime waves and abusive state responses pose, perhaps expecting or hoping that democratic governments would rein in violent police and improve the courts. Often, groups were fighting other authoritarian legacies, or moving on to confront underlying socioeconomic injustice. As a result, in many countries, rights organizations have stopped systematically documenting individual cases of police violations.

The new victims of police abuse are common criminals—both perpetrators and victims of crime—in contrast to the past when the people whom human rights organizations defended were victims of state repression. It is clear that the idea of defending the new “guilty victims” is increasingly discomforting to them. This is another reason why human rights organizations are moving away from their role as police watchdogs. They face denunciation by politicians for coddling criminals and must contend with the argument that tough-on-crime policies entail a necessary trade-off in the abrogation of some rights. In transitional societies, where rights are fragile in both public consciousness and political discourse, this hard-line appeal threatens a loss of public support for hard-won rights values.

When human rights groups do resume the watchdog role, security information tends to be classified and inaccessible. Human rights groups must then develop new strategies to obtain information on the full range of victims of police abuse. Rights groups in Argentina have used leyes de amparo—a kind of habeas corpus instrument—to obtain data from the police. In Brazil, groups have mapped police abuse. In both countries, groups have analyzed patterns of abusive police practice by using press accounts to build databases of police abuse. Other organizations have chosen to work on miscarriages of justice in which the defendants are clearly wrongly accused. The cases of the new innocent victims of the war on crime generally have far greater media and political resonance.

At the same time, human rights activists have come to understand that denouncing only the criminal justice system ignores the very real suffering of crime victims and other citizens whose lives are ever more constrained by both real and perceived threats of crime. One important strategy for rights organizations reflects a lesson learned earlier in struggles for transitional justice. Just as early truth commissions were criticized for their focus on offenders and neglect of the reparative needs of the victims, criminal justice systems also often pay little heed to the needs and rights of crime victims. Rights groups, for their part, have also sometimes focused on violations of due process without sufficiently recognizing the plight of crime victims. Many victims and witnesses refuse to cooperate with criminal proceedings because, at best, it is time consuming, frustrating, expensive, and often leads to nothing; at worst, cooperation with unsympathetic or hostile officials can be psychologically traumatic (particularly in cases of violence against women) or even dangerous when there is no protection against violent reprisals. Some organizations are starting to examine the treatment of crime victims and advocate for more attention and sensitivity to their needs, particularly the very poor whose livelihoods are desperately fragile. Others seek to increase access to justice through legal aid and other mechanisms. Through this work, advocates confront the remoteness, lack of consideration, and irrelevance of formal justice to the lives of the poor.

Another fundamental challenge—and perhaps the area in which most work remains to be done—lies with the police. The abysmal lack of public trust in and cooperation with the police has been well documented across Africa, Asia, and Latin America. Human rights activists have far more experience with the workings of the courts than with the closed, sometimes military-dominated, and often-hostile police forces. Yet the police are on the frontline of crime fighting, and, despite research indicating that abusive and discriminatory policing reduces effectiveness, efforts to introduce community policing and other responsive and prevention-oriented approaches often collapse, criticized as being “soft on crime.” The challenge of crafting reforms that can address both police accountability and effectiveness lies at the heart of human rights engagement with the need to confront both crime and ongoing state violence.

Few criminal justice policies are made on the basis of consultation or debate with broad sectors of society, and few are informed by solid data and analysis. All too often, perceptions and emotions dictate policies. Human rights groups can and should play a role in shaping the tone and content of policy debates, shifting the model of criminal justice from the retributive to the restorative and engaging with institutional reform processes. Without intervention by the human rights community, it is more likely that policy responses will undermine rights and perpetuate injustice.